January 21, 2020 1:58PM

Reduce Your Ignorance of Immigration Policy with This Quiz

Like most public policy issues, immigration is difficult to understand. The issue has complex effects on American society and the world at large. This difficulty doesn’t prevent most people from forming strong opinions on the topic, but unfortunately ignorance guides many of their opinions. And I don’t mean ignorance regarding the findings of peer‐​reviewed literature or what social scientists say about immigration. I mean ignorance of basic facts about immigration, such as their numbers and percentage of the population, leads to systematic incorrect estimates.

This ignorance matters a lot. Some research has found that people significantly overestimate the number of immigrants, their percent of the population, and how culturally distant they are from themselves. On the individual level, holding incorrect factual opinions on immigration is correlated with being skeptical of the benefits of immigration. To be clear, many well‐​informed people disagree with our policy recommendations. Being more knowledgeable on this topic can only help Americans form better policy opinions — regardless of what those opinions are. That’s something we all should welcome.

To reduce your own ignorance or to see how afflicted you are, take this test and see how well you do:

January 21, 2020 11:30AM

Public Schools Cannot Be Religiously Neutral, But School Choice Makes Neutrality Possible

Tomorrow the U.S. Supreme Court will hear oral argument in Espinoza v. Montana, a case addressing state constitutional provisions that bar public funds from going to religious institutions, especially schools. At the crux of the case is the belief that taxpayers should not be forced to take sides on religion. But the oft‐​ignored root problem is that public schools cannot be religiously neutral; no matter what they do they are taking sides on religious matters. Only school choice—what has been quashed in Montana—frees the state from that.

The specifics of the case seem minor. The Montana Supreme Court struck down a program offering a $150 tax credit to people who donated to groups furnishing scholarships for students to attend private schools, including religious. As long as religious schools were included, the Montana court ruled that the whole program had to be struck down, lest it violate the state’s constitutional provision—a so‐​called Blaine amendment—interpreted to prohibit any funds from reaching “sectarian” schools.

At the heart of many people’s concern is entangling government with religion, an absolutely legitimate worry. But as long as there is public schooling—which deals inescapably with minds, and hence worldviews—government will be entangled with religion.

As I illustrate in this Journal of School Choice article—which is also part of a new book on the nexus of education and religion—public schooling has never been, and can never be, religiously neutral. Reproduced below is a graphic I created for the JSC article to help readers understand the many levels on which public schooling intersects with religion. They run from elevating non‐​religion over religion by the very effort to have religion‐​free education, to teaching religion‐​saturated history.

Diagram showing levels of religion in schools

The Public Schooling Battle Map—sadly, still in a state of reconstruction—illustrates that religion remains a powerful flashpoint in public schools. The database contains 346 state‐ and district‐​level battles explicitly and foremost about the presence of religion, or perceived affronts to religion, ranging from creationist displays in schools to yoga classes. Many other conflicts may implicate religion, though it may not be the core concern, including battles over bathroom and locker room access being contested nationwide.

Quite simply, religious neutrality in public schools is impossible.

Can government promote education at all without touching on religion? Probably not, but it can come much closer than it does with public schooling. The solution is to do the very thing the Montana Supreme Court struck down: allow people to direct some of their income to groups that provide scholarships, and give them a tax credit. That would enable taxpayers to freely direct their money so that families could choose private schools that may be religious, or to otherwise let it go to public schools. What is crucial is that government no longer force funding of particular schools, and hence particular approaches to faith, rendering the state truly neutral.

There are many reasons the U.S. Supreme Court should rule in favor of school choice. But the most important is that the end that Blaine amendments are supposed to achieve—keeping government out of religion—is far better served by the measure Montana struck down than maintaining a public school monopoly over taxpayer funds.

January 21, 2020 9:31AM

Taxpayers Eat Another Solar Energy Flop

Looks like another federally backed solar energy plant has gone bust. Bloomberg News reports, “A $1 Billion Solar Plant Was Obsolete Before It Ever Went Online.”

In 2011 the $1 billion [Crescent Dunes] project was to be the biggest solar plant of its kind, and it looked like the future of renewable power. Citigroup Inc. and other financiers invested $140 million with its developer, SolarReserve Inc. Steven Chu, the U.S. Department of Energy secretary at the time, offered the company [$737 million in] government loan guarantees, and Harry Reid, then the Senate majority leader and senior senator from Nevada, cleared the way for the company to build on public land.

The state of Nevada chipped in another $119.3 million tax abatements over 20 years. But, Chris Martin and Nic Querolo write at Bloomberg,

By the time the plant opened in 2015, the increased efficiency of cheap solar panels had already surpassed its technology, and today it’s obsolete—the latest panels can pump out power at a fraction of the cost for decades with just an occasional hosing‐​down.…

The plant’s technology was designed to generate enough power night and day to supply a city the size of nearby Sparks, Nev. (population 100,000), but it never came close. Its power cost NV about $135 per megawatt‐​hour, compared with less than $30 per MWh today at a new Nevada photovoltaic solar farm, according to BloombergNEF, which researches fossil fuel alternatives.

It all reminds me of another giant taxpayer‐​funded failure of the Obama administration’s green‐​energy enthusiasm, Solyndra. Visiting the Solyndra solar‐​panel factory in Fremont, California, in May 2010, President Obama declared, “The true engine of economic growth will always be companies like Solyndra.” But despite $535 million in federal loan guarantees, Solyndra declared bankruptcy 16 months later.

Plenty of people in and around the Obama administration genuinely believed that fossil fuels were dangerous and unsustainable. But as I wrote in 2018 in American Consequences magazine,

when governments pick winners, politics usually rears its ugly head. Official investigations and reporters dug into the story and found that, as the Washington Post reported, “Obama’s green‐​technology program was infused with politics at every level… Political considerations were raised repeatedly by company investors, Department of Energy bureaucrats and White House officials.”

The family funds of Oklahoma billionaire George Kaiser, a big Obama fundraiser, owned a third of Solyndra. As the company was failing, Kaiser wrote to a Solyndra board member, “Why don’t you pursue your contacts with the WH?” Two months later the board member wrote Kaiser, “The DOE really thinks politically before it thinks economically.” Solyndra’s lobbyists met at least three times with an aide to top White House official Valerie Jarrett.

Government subsidies can bring any business into existence. But apparently even subsidies can’t ensure the production of something useful.

January 21, 2020 9:10AM

Sir Paul Tucker on Floors and Corridors

In some previous posts, I've taken Federal Reserve officials, including former New York Fed President William Dudley, to task for continuing to insist that the Fed's post-2008 "floor" operating system is a "simple" means for keeping overnight interest rates on target. Whatever the floor system's merits may be, simplicity isn't one of them.

But in weighing the advantages of the Fed's floor system compared to those of a "corridor system," Fed officials haven't just put their thumbs on the floor-system scale by exaggerating its merits. They've also exaggerated the drawbacks of a corridor system. In particular, they've framed the choice as one between the current floor system (or rather an idealized version of it), and a revival of the Fed's pre-2008 arrangement, with zero interest on reserves, a relatively wide (but variable) corridor, and heavy reliance upon open-market operations.

In fact, none of the "pro-corridor" economists I know —and there are more than a few of us—favors a return to the pre-2008 set-up, or anything like it. Instead, we mostly have in mind a symmetrical corridor, with the (usually though not always positive) interest rate on reserves as its lower limit, and the rate charged by some Fed lending facility—it could be the proposed standing repo facility—as its upper limit. Finally, most of us would argue for a relatively narrow corridor of 50 basis points or so, with its correspondingly limited role for open-market purchases and sales.

I had intended to elaborate upon this point. But thanks to Sir Paul Tucker, a former Bank of England Deputy Governor and author of Unelected Power: The Quest for Legitimacy in Central Banking and the Regulatory State, I don't have to. For Paul argued the same point, very eloquently, at a Hoover Institution conference last year, in commenting on a presentation by Fed Vice Chair Randy Quarles. The conference proceedings, including Quarles' contribution with Paul's comments, are available online, so you can read the whole thing. Still, I can't resist sharing some substantial excerpts, the better to tempt you to read the rest.

Paul begins by repeating a central argument of his book, to wit, that central banks should "live by a principle of parsimony in order to aid public comprehensibility and accountability":

Central banks are very powerful bodies, led by unelected technocrats who are insulated from day-to-day politics. In our democracies, the delegation of government power can be legitimate only if we can track what the legislature’s agents are doing. Central banks should make that as straight-forward as possible. And, in jurisdictions that have chosen to have a market economy, they should distort market mechanisms no more than required to achieve their objectives.

This precept entails that central bank balance-sheet operations should at all times be as parsimonious as possible consistent with achieving their objectives. Thus, if price stability can be achieved using only interest rate policy, it should be; and if banking system resilience can be maintained without a permanently enormous central bank balance sheet, it should be.

In view of this Paul concludes that, "if there are other options, a floor system violates the principle of parsimony as it involves the central bank choosing to have a larger balance sheet than is necessary for monetary policy."

Read the rest of this post »
January 20, 2020 11:57AM

Policymakers Obsess Over Pain Prescribing and Ignore the Giant Elephant in the Room: Prohibition

On January 20th, the Cincinnati Enquirer ran a story on the recent report from the Centers for Disease Control and Prevention that showed a 30.1 percent drop in prescription opioid volume from 2010–2011 to 2016–2017. While the CDC report was non‐​judgmental, it was greeted by hospital administrators and emergency physicians in the Cincinnati area as good news.

The article quotes one physician/​hospital spokesperson as saying:

“The patient can know, ‘My encounter with the ED will … lead to a good outcome. I will not be exposed to unnecessary threats … downstream.’

“They will treat the pain in a safe way.”

I was interviewed for the story and shared with the reporter my experiences as a general surgeon seeing patients referred from emergency departments in excruciating pain who were given minimal pain medication—sometimes just Tylenol (acetaminophen) or ibuprofen—for conditions needing urgent surgical intervention. I told reporter Terry DeMio “It means a lot of people are getting under‐​treated for pain.”

Policymakers, including those in hospital and health care administration, refuse to accept the federal government data showing no correlation between prescription volume and the non‐​medical use of opioids or opioid use disorder among persons aged 12 and over. They ignore the 2018 study of more than 568,000 “opioid‐​naïve” acute pain patients given opioids from 2008–2016 that showed a total misuse rate of 0.6 percent, or last November’s study in the Annals of Emergency Medicine that followed “opioid naïve” patients prescribed opioids for acute pain in the emergency department at Albert Einstein College of Medicine and found just one percent still using prescription opioids six months later—and 80 percent of those patients still required the opioids for pain management.

Meanwhile, for the past several years, the overwhelming majority of overdose deaths are due to fentanyl and heroin, and a recent study in Public Health Reports found “prescribed opioids were commonly not detected in toxicology reports” of drug overdose decedents.

It is also important to mention that drugs such as acetaminophen and ibuprofen are not without risk. Acetaminophen can cause liver damage, for example, and ibuprofen can cause kidney damage and gastrointestinal bleeding—unlike prescription opioids.

As I mentioned in a letter to the editor of the Washington Post last December, it is easier for policymakers to focus on the number of pain prescriptions given to patients in pain than to confront the real elephant in the room: the overdose crisis is the result of drug prohibition.

January 17, 2020 5:00PM

As Supreme Court Considers Several Qualified Immunity Cases, A New Ally Joins The Fight

The Wall Street Journal recently published an op‐​ed by Institute for Justice Senior Attorney Robert McNamara, in which he describes IJ’s decision to join the raging battle against qualified immunity, a court‐​confected doctrine that provides rights‐​violating police and other government officials with what Cato has described as an “unlawful shield” against accountability for their misconduct. IJ’s focus on this issue will be a welcome addition to a fight that Cato has been waging for nearly two years with help from an astonishingly cross‐​ideological cast of public interest organizations ranging from the ACLU and the NAACP Legal Defense Fund to the Alliance Defending Freedom and the Second Amendment Foundation.

Cato launched its strategic campaign to challenge the doctrine of qualified immunity—an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s—on March 1, 2018. Cato’s kick‐​off panel featured Judge Lynn Adelman of the Eastern District of Wisconsin, who has sharply criticized the doctrine; Professor Will Baude, whose enormously influential law review article has formed the backbone of the legal challenge to qualified immunity; and Andy Pincus and Victor Glasberg, two practitioners with ample experience confronting the harsh realities of the doctrine. Shortly after that conference, George Will noted on Meet the Press that there would be a “national discussion” about qualified immunity, “led by the Cato Institute.”

The centerpiece of Cato’s strategic campaign to take down qualified immunity has been a series of targeted amicus briefs urging the Supreme Court to reverse its precedents and eliminate the doctrine outright. Since launching the campaign in March 2018, Cato has filed dozens of additional amicus briefs in our own name, but we have also organized a massive cross‐​ideological alliance of public interest groups opposed to qualified immunity—what Judge Don Willett recently called “perhaps the most diverse amici ever assembled.” This “cross‐​ideological brief” was first filed in July 2018, in support of the cert petition in Allah v. Milling, a case involving the illegal and unconstitutional solitary confinement of a pretrial detainee in Connecticut for nearly seven months. So unsettled was the state by the onslaught of amicus support that it settled the case by offering the plaintiff more to dismiss his cert petition than he had been awarded at trial.

A diverse array of lower court judges has also been increasingly critical of qualified immunity, with many explicitly calling for the Supreme Court to reconsider the doctrine. To underscore the incredible ideological breadth of the opposition to qualified immunity, it is worth noting that the judicial critics of the doctrine now include nominees of every single President since Carter, as well as one of the two remaining LBJ appointees on the bench. To give just a few notable examples:

  • Judge Don Willett, a Trump appointee to the Fifth Circuit, has explained how “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly,” and sharply notes that “this entrenched, judge‐​created doctrine excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.”
  • Judge James Browning, a George W. Bush appointee to the District of New Mexico, has now issued several opinions that include a blistering criticism of the Supreme Court’s “clearly established law” standard, and citing Cato’s amicus briefs for the argument that “qualified immunity has increasingly diverged from the statutory and historical framework on which it is supposed to be based.”
  • Judge Dale Drozd, an Obama appointee to the Eastern District of California, cited Cato’s March 2018 forum in his discussion of the campaign to challenge qualified immunity, and announced that “this judge joins with those who have endorsed a complete re‐​examination of the doctrine which, as it is currently applied, mandates illogical, unjust, and puzzling results in many cases.”

Now, almost two years into Cato’s campaign, the Supreme Court finally appears to be preparing to confront the question of whether qualified immunity should be reconsidered. There are currently six major qualified immunity cert petitions pending before the Court, and the manner in which the Supreme Court has repeatedly rescheduled consideration of these cases strongly suggests that the Justices may be preparing to consider them together—which in turn suggests that they’re looking closely at the fundamental question of whether qualified immunity should be reconsidered. We first discussed this possibility back in October of last year, and we now have even more evidence suggesting the Court may be preparing to take up this issue. Here are the key details about each of the six cases:

  • Brennan v. Dawson. In this case, the Sixth Circuit granted immunity to a police officer who, in an attempt to administer an alcohol breath test to a man on misdemeanor probation, parked his car in front of the man’s home at 8:00pm; turned the lights and sirens on for over an hour; circled the man’s house five to ten times, peering into and knocking on windows; and wrapped the home’s security camera in police tape. The court held that this warrantless invasion of the curtilage violated the Fourth Amendment, but nevertheless granted immunity due to a lack of “clearly established law.” The cert petition in this case was filed on January 11, 2019, and asks the Court to “reign in the qualified immunity standard to … reflect the common‐​law roots of qualified immunity.”
  • Zadeh v. Robinson and Corbitt v. Vickers. We’ve discussed these cases in more detail previously, but Zadeh is the case where the Fifth Circuit granted immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients. And Corbitt is the case where the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten‐​year‐​old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. The plaintiffs in both cases are now represented by Paul Hughes, who filed cert petitions on November 22, 2019, each of which asks “[w]hether the Court should recalibrate or reverse the doctrine of qualified immunity.” Cato submitted briefs in both cases, this time taking the lead on the cross‐​ideological brief, whose signatories also included the Alliance Defending Freedom, the American Association for Justice, the ACLU, Americans for Prosperity, the Due Process Institute, the Law Enforcement Action Partnership, the MacArthur Justice Center, the NAACP, Public Justice, R Street, and the Second Amendment Foundation.
  • Kelsay v. Ernst. This is the case where the Eighth Circuit, in an 8–4 en banc decision, granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.” The cert petition in this case was filed on November 26, 2019, and while it doesn’t ask the Court to reconsider qualified immunity outright, it does ask the Court to “take steps within the confines of current law to rein in the most extreme departures from the original meaning of Section 1983.” Cato filed a brief in support of this petition as well.
  • West v. Winfield. As related in the IJ op‐​ed mentioned above, police officers told Shaniz West that they were looking for her ex‐​boyfriend and thought he might be inside her house, so she gave them permission to go in and look. But instead of entering, they instead called a SWAT team, who bombarded it from the outside with tear‐​gas grenades, effectively destroying her home and all her possessions (the ex‐​boyfriend wasn’t even inside). The Ninth Circuit granted immunity to the officers, on the grounds that no prior case specifically established that this sort of bombardment exceeded the scope of consent that Ms. West gave to allow officers to enter her home. Yesterday, the IJ filed a cert petition on behalf of Ms. West asking the Court to clarify and limit the scope of qualified immunity. As noted, this case marks the launch of IJ’s “Project on Immunity and Accountability,” which is focused on challenging doctrines like qualified immunity that erroneously permit public officials to operate above the law. IJ has previously joined various iterations of the Cato‐​conceived cross‐​ideological brief described above, but we’re looking forward to filing our own amicus brief in support of IJ’s cert petition in West.

The Court has yet to make a final decision about any of these cert petitions, but there’s good reason to think the Justices are preparing to consider at least some of them jointly. First, in every single one of these cases (except West, as it was just filed yesterday), the Court has “called for a response” to the cert petition. Although a CFR alone is no guarantee of a cert grant, it’s an encouraging sign that at least some of the Justices are looking closely at the case, and want to hear more from the respondents about the issue.

Second, the Court’s repeated rescheduling decisions strongly suggest that they’re planning to consider them together, meaning they’re likely to address the fundamental, underlying question of whether qualified immunity itself should be reconsidered. Specifically, Baxter and Brennan were both fully briefed and originally set to be considered in October 2019. But since then, the Baxter petition has been rescheduled five times, and Brennan has been rescheduled three times, most recently on January 8th in both cases. January 8th also happens to be the same day in which the Court called for a response in both Zadeh and Corbitt (with the Kelsay CFR following five days later, on January 13th). It’s hard to imagine why else the Court would postpone these fully briefed petitions for over three months, unless they were holding them to consider along with these more recent petitions raising the same ultimate question.

Of course, this is all still speculative to some degree, and even if the Court does grant cert in one or more of these cases, there’s a wide range of potential outcomes. But the confluence of so many powerful petitions pending at the same time, combined with the Court’s obvious focus on this issue, makes undeniable what Cato has been saying for years—one way or another, the Supreme Court is going to have to confront the glaring legal inadequacies of qualified immunity, together with the massive injustices the doctrine has perpetrated on countless individuals whose rights have been violated with impunity by unaccountable police and other government officials.

January 17, 2020 4:29PM

On “Imminence”: Absence of Evidence is Evidence of Absence

“We caught him in the act and terminated him,” President Trump said in his first public comments about the January 3rd targeted killing of Iranian General Qassim Suleimani. The strike was ordered to avert “imminent and sinister attacks on American diplomats and military personnel.” Over the last two weeks, the Trump administration has offered a farrago of conflicting accounts—and zero evidence for that claim. In this case—apologies to Don Rumsfeld—absence of evidence is evidence that imminence was absent. And, unless you believe the Constitution gave the president practically unbridled discretion to embroil us in war, that means legal authority for the move was absent too.

The Pentagon’s initial announcement made no claim of exigent circumstances: “this strike was aimed at deterring future Iranian attack plans.” Hours later, however, Secretary of State Mike Pompeo claimed the president acted “in response to imminent threats to American lives”—“dozens if not hundreds” of them. Since then, when asked to elaborate, Pompeo has served up (1) a word‐​salad about “situational awareness of risk and analysis”; (2) a backward‐​looking theory by which past attacks demonstrate the imminence of future ones; and (3) the defensive insistence that “it was real,” even if “we don’t know precisely when and we don’t know precisely where”—also, don’t give me that look: “those are completely consistent thoughts”! He may yet crack under questioning.

Don't be so cynical!

Would I lie to you about an “imminent threat”?

“We did it because they were looking to blow up our embassy,” President Trump said last Thursday; wait, make that embassies, plural, four of them, he told Fox’s Laura Ingraham on Friday. Given the administration’s well‐​known preference for keeping Congress in the dark, maybe it’s not surprising nobody mentioned the alleged embassy threat in the post‐​hoc, closed‐​door Hill briefing last week. But surely it’s a little odd that Trump’s own secretary of defense didn’t get the intel memo.

There’s a simple explanation for the Trump Team’s shifting explanations: they’re lying. Leave aside the dubious notion that it’s possible to stop an imminent attack by killing a senior military commander (were the plans just in his head?)—apparently, the president conditionally authorized the Soleimani killing some seven months ago. (According to NBC News, Pompeo and then‐​national security adviser John Bolton even urged Trump to greenlight the hit last June, in response to the Iranians plinking a US drone.) The news that the day of the strike, U.S. forces tried and failed to take out another top Quds Force commander in Yemen further undermines the administration’s story that their aim was to avert an imminent threat.

Read the rest of this post »